COVID-19, India, and Investor-State Dispute Settlement (ISDS): Will India Be Able to Defend Its Public Health
Asia Pacific Law Review, Vol. 28(1), 2020
Posted: 25 Oct 2020
Date Written: October 17, 2020
The Coronavirus Disease 2019 (COVID-19) pandemic has forced States to adopt a number of regulatory responses, which, in turn, could negatively impact foreign investors. Thus, many apprehend that foreign investors might bring investor-State dispute settlement (ISDS) claims against States under different bilateral investment treaties. The COVID-19 pandemic has badly affected India, forcing India to adopt a national lockdown to slow down the spread of the disease. The lockdown ran for several weeks bringing a large range of economic activities to a grinding halt. In this context, this article argues that if ISDS claims are brought against India, India will be able to defend its COVID-19 regulatory measures under the treaty defences given as part of the non-precluded measures provision and as an exception to the expropriation provision. Further, India will also be able to rely on the police powers doctrine emanating from customary international law. Given the scale of the pandemic, the tribunals should grant substantial deference to India while adjudicating upon its COVID-19-related regulatory measures.
Keywords: COVID-19, India, police powers, investor-state dispute settlement, non-precluded measures, expropriation, standard of review, bilateral investment treaties
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